United States v. Martini, No. 10-2210 (2d Cir. 2012)

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Justia Opinion Summary

In 1987, Cassesse was convicted of conspiracy to distribute heroin and sentenced to five years’ probation. In 1991, he was convicted of possession with intent to distribute more than 500 grams of heroin and sentenced to 87 months with a consecutive term of 87 months for violating probation, and a lifetime term of supervised release, 21 U.S.C. 841(b)(1)(B) (1991). While under supervised release, he was indicted for racketeering, 18 U.S.C. 1962. Following his guilty plea, the district court sentenced Cassesse to 90 months of imprisonment and three years of supervised release. Cassesse pled guilty to the supervised release violation in exchange for a recommendation that any additional term be served concurrently. The court rejected the recommendation, imposing a sentence of 12 months of imprisonment for the supervised release violation to run consecutively to the 90 month term. Having revoked lifetime supervised release for the narcotics violation, the court then imposed a new lifetime term of supervised release. The Second Circuit affirmed. The court was not required to deal with “the almost metaphysical issue” of how a lifetime term of supervised release, imposed for a supervised release violation, should be reduced by the number of months of a prison term imposed for the violation.

The court issued a subsequent related opinion or order on July 25, 2012.

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10-2210-cr United States of America v. Martini (Cassesse) 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2011 4 Argued: April 3, 2012 Decided: July 11, 2012 Docket No. 10-2210-cr 5 6 7 8 9 10 11 12 13 14 - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA, Appellee, 15 Before: NEWMAN, KATZMANN, and PARKER, Circuit Judges. V. MICHAEL CASSESSE, Defendant-Appellant.1 - - - - - - - - - - - - - - - - - - - - - - - - 16 Appeal from the June 19, 2009, judgment of the United States 17 District Court for the Eastern District of New York (Sandra L. Townes, 18 District 19 conviction and for violation of supervised release. 20 contends that twelve months of imprisonment imposed for the supervised 21 release violation should have been subtracted from the lifetime term 22 of supervised release. Judge), sentencing the Defendant for a racketeering The Defendant Affirmed. 23 Bradley W. Moore, New Haven, Conn. (James I. Glasser, Wiggin and Dana LLP, New Haven, Conn., on the brief), for DefendantAppellant. 24 25 26 27 28 29 30 1 The Clerk is directed to change the official caption. Amy Busa, Asst. U.S. Atty., New York, N.Y. (Loretta E. Lynch, U.S. Atty. for the Eastern District of New York, Peter A. Norling, Asst. U.S. Atty., New York, N.Y., on the brief), for Appellee. 1 2 3 4 5 6 7 8 JON O. NEWMAN, Circuit Judge. 9 This appeal presents primarily the almost metaphysical issue of 10 how, if at all, a lifetime term of supervised release, imposed for a 11 supervised release violation, should be reduced by the number of 12 months of a prison term imposed for that violation, a subtraction we 13 are willing to assume is required by the literal terms of the 14 provisions governing supervised release. 15 Cassesse appeals from the June 19, 2009, judgment of the District 16 Court for the Eastern District of New York (Sandra L. Townes, District 17 Judge) revoking his lifetime term of supervised release and sentencing 18 him to a term of twelve months in prison followed by a renewed 19 lifetime term of supervised release. Defendant-Appellant Michael We affirm. Background 20 21 In 1987, Cassesse was convicted of conspiracy to distribute 22 heroin and sentenced to five years probation. In 1991, he was 23 convicted of possession with intent to distribute more than 500 grams 24 of heroin and sentenced to 87 months of imprisonment, a consecutive 25 term of 87 months for violating his probation, and a lifetime term of 26 supervised release, the maximum possible term of supervised release 27 under the statute. See 21 U.S.C. § 841(b)(1)(B) (1991). 28 conditions of supervised release was that Cassesse refrain from new 29 criminal conduct. -2- One of the 1 In 2007, while Cassesse was out of prison but continuing to serve 2 his term of supervised release, he was indicted on several new 3 charges, including racketeering in violation of 18 U.S.C. § 1962. 4 Cassesse was subsequently charged with violating a condition of 5 supervised release by committing a new crime. 6 plea to the racketeering charge, the District Court sentenced Cassesse 7 for 8 violation. Following his guilty both the racketeering conviction and the supervised-release 9 Speaking with respect to the racketeering offense, Judge Townes 10 noted that she had considered all of the submitted documents, all of 11 the statements made by the defense, the United States Sentencing 12 Guidelines ( the Guidelines ), and the factors enumerated by 18 U.S.C. 13 § 3553(a), including the Defendant s history and characteristics, the 14 nature of the crime committed, and the need for specific and general 15 deterrence. 16 was a violation of his term of supervised release: 17 18 19 20 21 22 23 24 25 26 Judge Townes noted that Cassesse s racketeering offense He committed the crime to which he pled guilty [ i.e., racketeering] while serving . . . a term of supervised release. Mr. Cassesse s difficulties in life do not relieve him of his responsibilities for [the consequences of] continuing to commit crimes. [Yet] he does not seem inclined to stop. . . . I truly don t think Mr. Cassesse has fully accepted responsibility for his criminal conduct. I believe he s just been caught. The District 27 imprisonment and 28 Court three imposed years of a sentence supervised of 90 months of release for the racketeering crime. 29 Judge Townes next turned to the violation of supervised release. 30 At this point the parties presented to the Court a plea agreement, in -3- 1 which Cassesse apparently agreed to plead guilty to the supervised 2 release violation in exchange for the Government s recommendation that 3 any additional prison term for that violation be served concurrently 4 with the 90-month racketeering sentence. 5 relevant advisory range for the supervised release violation was six 6 to twelve months of imprisonment. The parties agreed that the 7 The District Court accepted Cassesse s guilty plea but rejected 8 the parties recommendation of a concurrent term, imposing instead a 9 sentence of twelve months of imprisonment for the supervised release 10 violation to run consecutively to the 90 month term for the 11 racketeering conviction. 12 of lifetime supervised release for the narcotics violation, the 13 District Court then imposed a new lifetime term of supervised release. 14 Although Judge Townes provided no detailed explanation for the Having revoked the previously imposed term 15 sentence for the supervised release violation, she stated, I have 16 reviewed everything. 17 counsel objected to the lifetime term of supervised release but did 18 not object either to the Court s failure to subtract the twelve month 19 term of imprisonment from it or to the brevity of the Court s 20 explanation of that term. At the conclusion of the hearing, defense Discussion 21 22 A. Standard of Review 23 On appeal, sentences may be challenged for substantive and 24 procedural reasonableness. See United States v. Verkhoglyad, 516 F.3d 25 122, 127 (2d Cir. 2008). Cassesse argues on appeal that the lifetime -4- 1 term of supervised release should somehow have been reduced by twelve 2 months, 3 sentence. 4 District Court to the lack of a twelve month reduction, we will assume 5 that his general objection to the length of the new lifetime term 6 comprehended this point. 7 statutory interpretation, we review the District Court s decision de 8 novo. which is a substantive objection to the length of the Although Cassesse did not specifically object in the Because this claim presents a question of See United States v. Aleynikov, 676 F.3d 71, 76 (2d Cir. 2012). 9 Cassesse also complains that the District Court inadequately 10 explained its reasons for the lifetime term, which is a procedural 11 objection, and in the absence of any objection in the District Court, 12 plain error review applies. See United States v. Villafuerte, 502 F.3d 13 204, 208, 211 (2d Cir. 2007) (holding that rigorous plain error 14 analysis applies to unpreserved claims of procedural sentencing error 15 under 18 U.S.C. § 3553(a) and (c)).2 16 B. Whether and How to Reduce the Lifetime Term of Supervised Release 17 Cassesse contends that the District Court erred when, after 18 revoking his previously imposed term of lifetime supervised release 2 Although we have questioned the appropriateness of plain error review where a sentencing error allegedly increased a sentence, see United States v. Sofsky, 287 F.3d 122, 125-26 (2d Cir. 2002), we see no reason to weaken the plain error standard where a court has allegedly inadequately fulfilled a long-standing and uncomplicated procedural requirement of sentencing. See Villafuerte, 502 F.3d at 208, 211. 5 1 for 2 imprisonment and a new lifetime term of supervised release for the 3 supervised release violation. 4 District Court was required by statute to deduct the former from the 5 latter, limiting the supervised release term to something at least 6 twelve months less than the lifetime maximum authorized for the 7 narcotics violation for which his original term of supervised release 8 was imposed. 9 his narcotics violation, it imposed both twelve months of More specifically, he contends that the Sentencing for a violation of supervised release is governed by 10 18 U.S.C. § 3583. The parties agree that the relevant form of section 11 3583 is the one that was in force in 1991, at the time that Cassesse 12 was sentenced to his original lifetime term of supervised release. See 13 United States v. Smith, 354 F.3d 171, 172 (2d Cir. 2003). 14 of section 3583 in effect in 1991 provides in relevant part: The version The court may . . . revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release . . . . 15 16 17 18 19 20 21 22 18 U.S.C. § 3583(e)(3) (1991). 23 question of whether a renewed term of supervised release may be 24 imposed in addition to a prison term as punishment for a supervised 25 release violation. 26 Supreme Court in Johnson v. United States, 529 U.S. 694 (2000), 27 concluded that a court may revoke the release term and require 28 service of a prison term equal to the maximum authorized length of a 29 term of supervised release. id. at 705. The 1991 version is silent on the Interpreting this version of the statute, the 6 Moreover, the Court added, 1 because a term of supervised release continues . . . after revocation 2 even when part of it is served in prison, . . . the balance of it [] 3 remain[s] 4 incarceration is over[.] 5 841(b)(1)(B) provided for the original term of supervised release and 6 authorized a maximum term of lifetime supervised release. 7 before Johnson was decided, but after Cassesse was sentenced, Congress 8 amended the supervised release provisions to provide explicitly that 9 a renewed term of supervised release may be imposed for a supervised effective as a term of supervised Id. at 706. release when the As we have noted, section In 1994, See Violent Crime Control and Law Enforcement Act 10 release violation. 11 of 1994, Pub. L. No. 103-322, § 110505, 108 Stat. 1796, 2017, codified 12 at 18 U.S.C. 13 renewed term of supervised release not to exceed the maximum allowable 14 for 15 relevant to this appeal, of a reduction of the maximum allowable term 16 of supervised release by the length of time spent in prison for the 17 supervised release violation. 18 which provides: 19 20 21 22 23 24 25 26 27 28 29 the § 3583(h). underlying The amending language not only authorized a violation, but also introduced the concept, The amendment added section 3583(h), When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. 18 U.S.C. § 3583(h) (2012) (emphasis added). 30 7 1 Both parties agree, in effect, that once the Supreme Court ruled 2 in Johnson that a renewed term of supervised release may be imposed 3 for violations that occurred under the 1991 version of section 4 3583(e)(3), the imprisonment reduction concept of the later enacted 5 section 3583(h) should apply to such a renewed term. 6 reasons as follows: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 The Appellant Under current law, [t]he length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. 18 U.S.C. § 3583(h); see also USSG § 7B1.3(g)(2). The law in effect when Mr. Cassesse committed his narcotics offense is to the same effect, even though the underlying statutory basis is different. As the Supreme Court stated, under Section 3583(e): [I]t is not a term of imprisonment that is to be served, but all or part of the term of supervised release. But if the term of supervised release is being served, in whole or part, in prison, then something about the term of supervised release survives the preceding order of revocation. Johnson, 529 U.S. at 705. Thus, if some part of the term of supervised release is served in prison after a violation, then the part of the term that remains after that prison sentence is served is less than the whole, original release term. . . . Thus, the pre-1994 Section 3583(e) and the current Section 3583(h) are in accord on this point. That is, any reimposed supervised-release term must be reduced by the length of the prison term the defendant serves for the violation. Brief of Appellant at 14-16 (footnote omitted). The Government the reaches pre-1994 the same version of by 3583(e) contending did not that 41 although 42 subtraction of the incarceratory sentence, it did require that the 8 § result require 1 combined term of supervised release and incarceration did not exceed 2 the original term of supervised release. Brief for Appellee at 26. 3 Thus, for example, if the prior term of supervised release was ten 4 years and the period of incarceration for the violation was one year, 5 the only way the combined term could not exceed the original term is 6 if the one year term of imprisonment is subtracted from the prior ten 7 years of supervised release, yielding a maximum allowable renewed term 8 of nine years. 9 The intriguing question is whether and how the prison term 10 reduction concept applies to a renewed lifetime term of supervised 11 release. 12 subtraction concept into an addition concept. 13 although Cassesse s one year term in prison plus the renewed lifetime 14 term of supervised release may equal the original lifetime term of 15 supervised release, they do not exceed it. Id. The Government elides this question by converting the It observes that 16 Cassesse advances the subtraction concept and insists that his 17 one year of imprisonment must somehow be subtracted from his lifetime 18 term of supervised release. 19 contends that the lifetime term should be abandoned in favor of a 20 fixed term of years from which the one year term of imprisonment would 21 be subtracted. See Brief for Appellant at 21. 22 that the lifetime term of supervised release should be converted to 23 the corresponding offense level 43 in the Sentencing Table of the 24 Sentencing Guidelines from which some appropriate reduction should be 25 made, after which the reduced offense level would presumably be 26 converted back into a term of years. Cf. United States v. Nelson, 491 He suggests three techniques. 9 First, he Second, he suggests 1 F.3d 344, 349 (7th Cir. 2007) (affirming conversion of mandatory life 2 sentence to offense level 43 and then reducing that level by 40 3 percent to reflect substantial assistance). 4 one year could be subtracted from his life expectancy at the time of 5 sentencing.3 Third, he suggests that 6 Intriguing as are the question and some possible answers to it, 7 we conclude that the more appropriate course is simply to recognize 8 that this is one of those rare situations where Congress did not 9 expect the literal terms of its handiwork to be applied to a lifetime 10 term of supervised release, even if we assume that the subtraction 11 concept of section 3583(h) should be applied to a fixed term of 12 supervised release imposed under the pre-1994 version of section 13 3583(e)(3). Cf. Holy Trinity Church v. United States, 143 U.S. 457, 14 472 (1892) (statute prohibiting prepayment of transportation of alien 15 into United States to perform service of any kind held inapplicable to 16 church s contract to bring resident of England to render service as 17 rector and pastor, even though contract was within the letter of 18 statute). 3 A variant of Cassesse s third suggestion was offered by the Seventh Circuit, in the context of a reduction for substantial assistance from a mandatory life sentence. That Court suggested making the substantial assistance reduction from 470 months, the average life expectancy of federal defendants at the time of sentencing, as determined by the United States Census Bureau. See Nelson, 491 F.3d at 349-50. 10 1 First, it is highly unlikely that Congress expected the 2 subtraction concept to be applied to a lifetime of supervised release. 3 Second, even if a sentencing judge were to feel obliged to make a 4 subtraction in some fashion, the judge could easily circumvent such a 5 requirement by selecting a supervised release term of many years, 99 6 for example, and then imposing a term of only 98 years. 7 of the defendant s life expectancy would introduce a variable bearing 8 little, if any, relation to penological purposes for defendants who 9 outlive their life expectancy and would introduce Third, use reverse age 10 discrimination. 11 supervised release was not unlawful. See United States v. Rausch, 638 12 F.3d 1296, 1303 (10th Cir. 2011) ( Because it is impossible to predict 13 the precise length of any individual s life, a [supervised release] 14 sentence 15 conceptual not practical meaning. ). But see United States v. Shorty, 16 159 F.3d 312, 316 (7th Cir. 1998) ( [T]he maximum amount of supervised 17 release possible would have been life minus the amount of imprisonment 18 imposed 19 subtraction suggested).4 of We conclude that the unadjusted lifetime term of life during the less two sentencing years for 4 [imprisonment] revocation ; We note that in a recent summary order, no has method only of United States v. McNaught, 396 F. App x 772 (2d Cir. 2010), our Court appeared to endorse Cassesse s argument. See id. at 774 (stating that section 3583(h) required the district court to subtract Appellant s term of 30 months imprisonment from the maximum lifetime term of supervised release ). That statement, made without considering whether or how 11 1 2 C. Explanation of Sentence Cassesse contends that the District Court committed procedural 3 error during the sentencing for his supervised release violation by 4 failing to consider the statutory factors required by 18 U.S.C. 5 § 3583(e) and by failing to explain the reasons for the sentence as 6 required by 18 U.S.C. § 3553(c). 7 out in the margin.5 The statutory requirements are set such a subtraction should be made, was dictum; the holding was that a five-year term of supervised release was lawful. Moreover, the summary order in McNaught was non-precedential. See 2d Cir. I.O.P. 32.1.1. 5 Section 3583(e) cross-references several subsections of section 3553(a). (1) These are: the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed-. . . (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment 12 in the most effective 1 manner; . . . (4) the kinds of sentence and the sentencing range established for-. . . (B) in the case of a violation of . . . supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28 . . . ; (5) any pertinent policy statement . . . issued by the Sentencing Commission . . . that . . . is in effect on the date the defendant is sentenced[;] (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a). Section 3553(c) provides: The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence. 13 1 The District Court s failure to explicitly consider the section 2 3553(a) factors does not rise to the level of plain error. As long 3 as the judge is aware of both the statutory requirements and the 4 sentencing range or ranges that are arguably applicable, and nothing 5 in the record indicates misunderstanding about such materials or 6 misperception about their relevance, we will accept that the requisite 7 consideration [required by 18 U.S.C. § 3583(e)] has occurred. United 8 States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005). 9 every reason to believe that Judge Townes knew she had to consider, Here, there is 10 and did consider, the relevant statutory factors. 11 considered nearly identical factors during her discussion of the 12 racketeering conviction that resulted from the same criminal acts. 13 During 14 supervised release violation and how that violation affected her 15 overall 16 offender. 17 violation itself, in lieu of a detailed explanation she stated 18 generally, I have reviewed everything. 19 that Judge Townes was aware of the appropriate policy statements and 20 the relevant advisory terms of imprisonment. 21 that The discussion, assessment of moreover, the she Defendant commented as an She thoroughly on Cassesse s unremorseful repeat Then, after turning specifically to the supervised release explanation requirement of Finally, the record shows section 3553(c) is also 22 sufficiently satisfied to preclude a finding of plain error. 23 3553(c) requires no specific formulas or incantations; rather, the 24 length and detail required of a district court s explanation varies 25 according to the circumstances. See Villafuerte, 502 F.3d at 210. 26 Where, as here, the sentence concerns a violation of supervised 14 Section 1 release and the ultimate sentence is within the recommended range , 2 compliance with the statutory requirements can be minimal. 3 Verkhoglyad, 516 F.3d at 132-33 ( [A] court s statement of its reasons 4 for going beyond non-binding policy statements in imposing a sentence 5 . . . need not be as specific as has been required when courts 6 departed from guidelines . . . . (emphases original)); Villafuerte, 7 502 F.3d at 210 ( When the district court imposes a Guidelines 8 sentence, it may not need to offer a lengthy explanation . . . . ). 9 Furthermore, section 3553(c) has likely been satisfied when a court s 10 statements meet the goals of (1) informing the defendant of the 11 reasons for his sentence, (2) permitting meaningful appellate review, 12 (3) 13 particular sentence, and (4) guiding probation officers and prison 14 officials in developing a program to meet the defendant s needs. Id. 15 The District Court adequately fulfilled its duties under the enabling the public to learn why the defendant See received a 16 statute, and the error, if any, was not plain. 17 briefly described some reasons for her supervised release violation 18 sentence, 19 Cassesse s cooperation because she had already given him credit for 20 that in her racketeering sentence and noting that Cassesse differed 21 from his co-defendants because he was the only one with a violation of 22 supervised release. 23 intertwined analysis of the supervised release violation and the 24 racketeering crime clearly provided a sufficient explanation of the 25 sentence she ultimately imposed for the violation. stating that she First, Judge Townes would not reduce the sentence for Second, and more importantly, Judge Townes s 26 15 1 United States v. Lewis, 424 F.3d 239 (2d Cir. 2005), upon which 2 Cassesse principally relies, involved quite different circumstances. 3 First, in Lewis the District Court imposed a sentence above that 4 recommended by the relevant Sentencing Commission policy statements, 5 triggering a higher descriptive obligation on the part of the District 6 Court. 7 court to provide the specific reason for the imposition of a sentence 8 different from that described in the relevant policy statements or 9 Guidelines). Id. at 245; see 18 U.S.C. § 3553(c)(2) (requiring district Second, unlike inLewis, Judge Townes provided a lengthy 10 explanation, albeit one that technically occurred during the 11 discussion of a different (but closely related) crime. Conclusion 12 13 14 For the foregoing reasons, the judgment of the District Court is affirmed. 15 16 16